Citation Nr: 1800197
Decision Date: 01/04/18 Archive Date: 01/19/18
DOCKET NO. 10-23 209 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to service connection for depression.
2. Entitlement to service connection for bilateral carpal tunnel syndrome, claimed as hand condition.
3. Entitlement to service connection for posterior vitreous detachment, claimed as vision condition.
4. Entitlement to service connection for face laceration residuals.
5. Entitlement to a temporary total disability rating due to surgical treatment which required a convalescence period.
6. Entitlement to a total disability rating based on individual unemployability (TDIU).
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Kelly A. Gastoukian, Associate Counsel
INTRODUCTION
The Veteran had active service from April 1970 to December 1971.
These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.
The issues of entitlement of service connection for bilateral carpal tunnel syndrome and posterior vitreous detachment are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. The Veteran's depression is at least partially caused by service-connected bilateral knee disabilities.
2. The Veteran's face laceration residuals were incurred in service.
3. The Veteran is prevented from securing and following substantially gainful employment as a result of his service-connected disabilities.
4. The Veteran underwent surgery for right knee arthroplasty on April 4, 2008.
5. At the time of the surgery, service connection was not in effect for his right knee disability. A September 2016 rating decision granted service connection for right knee meniscal tear; joint osteoarthritis; patellofemoral pain syndrome effective June 2008.
CONCLUSIONS OF LAW
1. The criteria for service connection for depression, secondary to service-connected knee disabilities, are met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).
2. The criteria for establishing service connection for face laceration residuals have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
3. The criteria for a TDIU have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 4.16 (2017).
4. The criteria for entitlement to a temporary total rating based on the need for convalescence from surgery for a right knee disability on April 4, 2008, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.30 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection
Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).
Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995).
VA will not concede aggravation unless the baseline level of the non-service connected disability is established by medical evidence created before the onset of aggravation or by the earliest evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of non-service connected disease or disability. 38 C.F.R. § 3.310(b).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Depression
The Board initially notes that the evidence of record does not support a finding that the Veteran's depression was incurred in or aggravated by active service.
In a September 2016 rating decision, the Veteran was granted service connection for lumbar strain, cervical spondylosis with multilevel discogenic disease, left knee meniscal tear; joint osteoarthritis; patellofemoral syndrome, and right knee meniscal tear; joint osteoarthritis; patellofemoral pain syndrome. The Veteran has not had a VA examination for his mental health disorder since the September 2016 grants of service connection.
In an October 2011 VA examination, the examiner diagnosed the Veteran with major depressive disorder. The Veteran reported insomnia, flashbacks, nightmares, depressed mood, low back pain and chronic right knee pain. The examiner opined that the Veteran's mental condition started on account of financial difficulties and chronic knee pain.
Given the evidence and the medical opinion already of record, the Board concludes that the evidence is, at least, in relative equipoise on the question of nexus on a secondary basis. Accordingly, further evidentiary development is not necessary. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose).
The October 2011 opinion is the most probative medical opinion of record, as it serves to link the Veteran's depression to his service-connected disabilities. Other opinions of record do not contradict the October 2011 opinion, but rather focus on direct service connection and do not consider the Veteran's bilateral knee disabilities when determining the cause of the current psychiatric disability. Therefore, the evidence regarding whether the Veteran's depression is related to his service-connected knee disabilities is in at least equipoise. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Resolving reasonable doubt in his favor, the criteria for service connection for depression are met.
Face Laceration Residuals
Concerning his face laceration residuals, the Veteran asserts that he was involved in a motor vehicle accident in late 1970 where he received blows to his face. He also indicated he received a blow to the face next to his left eye from a spoke from the vehicle he was travelling in for training in October 1970.
After review of the record, the Board finds that service connection for face laceration residuals is warranted.
The Veteran's service treatment records contain a July 1986 report of the December 1970 motor vehicle accident in which the Veteran reported injuries to his legs and face. A December 1970 medical record documented a motor vehicle accident that resulted in wounds to the Veteran's knees and face.
The Veteran was afforded a VA examination in March 2009. The examiner noted the Veteran referred pain in his right orbicularis oris as a consequence of his accident. He had flare-ups of elevated pain that lasted several hours upon touching his face. The examiner noted there had been a laceration injury, and as a result the Veteran had a superficial scar at the lateral aspect of his mouth that was lineal and measured 1cm by 1mm. there were no deformities or disfigurement, no keloid formation, and no effect on motion or function. The examiner diagnosed facial trauma and opined that the facial trauma was related to the Veteran's car accident in 1970.
Thus, in light of the service treatment records and VA examination findings, the Board concludes that the evidence is at least in equipoise regarding whether the Veteran has current face laceration residuals that were incurred in service. 38 C.F.R. § 3.303(a). Accordingly, resolving all doubt in his favor, service connection for face laceration residuals is warranted. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017).
II. TDIU
The Veteran contends that his service-connected disabilities prevent him from working.
Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The determination of a single disability as ratable at 60 or 40 percent or more includes consideration of disabilities involving one or more lower extremities as a single disability. Id. Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16.
Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. at 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).
In this case, the Veteran became eligible for TDIU on a schedular basis under 38 C.F.R. § 4.16(a) effective June 5, 2008, at which time, his service-connected lumbar strain was rated 40 percent disabling, his cervical spondylosis with multilevel discogenic disease was rated 20 percent disabling, his scar, residual laceration right thigh was rated 10 percent disabling, his left knee meniscal tear; joint osteoarthritis; patellofemoral syndrome was rated 10 percent disabling, his right knee meniscal tear; joint osteoarthritis; patellofemoral syndrome was rated 10 percent disabling, and his thigh condition was rated noncompensably disabling. His combined rating as of that date was 70 percent.
The Veteran graduated from high school, and received some college education but never obtained a degree. His work experience (outside his military service) has been limited to a time-keeper and tool-crib attendant for a construction company. He stopped working in April 2008. He has reported he left employment due to his service-connected disabilities.
A VA Form 21-4192 was obtained from the Veteran's employer in April 2009, which shows the Veteran had been employed from July 1999 to April 2008 as a toolroom man and performed other duties as well. He worked an average of 40 hours per week. No concessions were made to the Veteran due to his disability. The employer reported that Veteran had earned $30,203.25 during the last 12 months of employment and that 9 days of leave had been taken in the 12 months preceding his last day due to his disability.
The evidence of record, to include VA examination reports, treatment records, and Social Security Administration (SSA) records, reflect that the Veteran was unable to secure and follow substantially gainful employment due to his service-connected disabilities. Resolving all doubt in the Veteran's favor, the Board will award TDIU.
The Veteran was afforded a VA examination for his joints in March 2009. The examiner noted pain and stiffness in his knees, as well as lack of endurance for ambulation. Flare-ups were caused by kneeling, stairways, and prolonged standing or ambulation. The Veteran was unable to squat. The examiner noted the Veteran was currently unemployed due to knee pain.
The Veteran was also afforded a VA examination for his face laceration in March 2009. The examiner noted that the Veteran had pain in the right orbicularis oris that would flare-up when touched. The examiner further noted that there were no deformities, disfigurement, keloid formation, or effect on motion or function.
In August 2009, SSA found the Veteran disabled due to right knee arthroscopy and depression. SSA determined that the Veteran did not have the residual functional capacity to perform sedentary work. He could lift and carry no more than four to five pounds, sit for an hour daily and stand and walk for 30 to 45 minutes. He could not do frequent bending or prolonged sitting due to his pain, joint effusion, and lack of flexibility. He was also limited to engage in simple tasks due to his severe depression. He was unable to deal with stress common to work environments. The SSA determination noted that the Veteran's past relevant work experience involved a medium exertional level and skilled mental functions which exceeded his residual functional capacity. He was also noted to be of advanced age, had at least a high school education, was unable to communicate in English, and was unable to transfer his job skills to other occupations within his residual functional capacity. Taking all of the above factors into consideration, there were no jobs that existed in significant numbers in the national economy that the Veteran could perform.
The Veteran was afforded a VA PTSD examination in October 2011. The examiner diagnosed major depressive disorder. A global assessment of functioning score of 65 was noted. The examiner opined the mental disorder symptoms were not severe enough to interfere with occupational and social functioning.
The Veteran was afforded another VA examination for his joints in July 2016. The Veteran reported pain in his knees, and the examiner noted loss of standing and ambulation tolerance. The examiner opined that the Veteran's bilateral knee condition did not impact his ability to perform occupational tasks.
The Veteran was afforded a VA examination for his neck in July 2016. The Veteran reported pain that limited him from carrying objects from ground level. He could not perform activities that require frequent movement of the neck in a down or up position. The examiner opined that the Veteran was limited to occupational tasks without repetitive neck twisting, extreme bending movements, heavy lifting, carrying, pushing or pulling handling, and prolonged standing or prolonged ambulation activities.
The Veteran was afforded a VA examination for his back in July 2016. The Veteran reported pain that limited him from lifting moderate to heavy objects. The examiner opined that the Veteran was limited to occupational tasks without back twisting, extreme bending movements, heavy lifting, carrying, pushing or pulling handling, and prolonged standing or prolonged ambulation activities.
In March 2017, Dr. V.S. opined that the Veteran was incapacitated to carry out any type of job due to his neck, back, bilateral knee disabilities, as well as left thigh atrophy, bilateral carpal tunnel syndrome, and sleep apnea.
VA examinations in April 2017 found the Veteran was unable to sit or stand for long periods of time, limited in range of motion in his knees, limited in carrying objects over 10 pounds, activities that required walking on irregular surfaces and repetitively going from sitting to standing, climbing stairs or ladders, and limited to sedentary or semi sedentary type activities.
Although the SSA's determination is not binding on the Board, the medical evidence relied on by the SSA is relevant and the SSA's ultimate conclusion is persuasive under the circumstances of this case. The Veteran's service-connected disabilities prevented him from securing and following substantially gainful employment because the Veteran was unable to adjust to other work.
Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation consistent with his educational background and employment history. Therefore, entitlement to a TDIU is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.
III. Temporary Total Rating for Convalescence
A temporary total disability rating will be assigned if treatment for a service-connected disability results in surgery necessitating:
(1) at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or, (3) immobilization by cast, without surgery, of one major joint or more. See 38 C.F.R. § 4.30(a)(1), (2), (3) (2017).
VA treatment records reflect that the Veteran underwent surgery on the right knee in April 2008.
The Veteran filed a service connection claim for his bilateral knee disability in June 2008. VA received the Veteran's claim for a temporary total rating in September 2008. In a September 2016 rating decision, the RO granted service connection for the Veteran's bilateral knee disabilities, effective June 5, 2008.
There is no ambiguity in 38 C.F.R. § 4.30 (2017). A temporary total evaluation is allowable solely in connection with convalescence related to treatment of a service-connected disability. 38 C.F.R. § 4.30(a) (2017). Although the Veteran is now entitled to service connection for his right knee disability, at the time of his surgery he was not in fact service-connected for that disability.
In light of all of the above, the Board is constrained to deny the claim as a matter of law. 38 C.F.R. § 4.30 (2017).
ORDER
Service connection for depression is granted.
Service connection for face laceration residuals is granted.
A TDIU is granted.
A temporary total rating for convalescence based on surgery performed for right knee arthroplasty in April 2008, is denied.
REMAND
Carpal Tunnel Syndrome
The Veteran contends that he has current bilateral carpal tunnel syndrome due to service, to include as a result of a 1970 motor vehicle accident.
A July 2016 VA examination report reflects that the Veteran was diagnosed with bilateral carpal tunnel syndrome in 2004. The examiner opined the Veteran's repetitive movements caused by constant use of his hands were most likely the cause of the bilateral carpal tunnel syndrome. The examiner found no evidence in the military records that supported an injury to the wrist during the 1970 motor vehicle accident and that carpal tunnel syndrome was also unlikely the result of the motor vehicle accident since carpal tunnel was diagnosed 34 years after the motor vehicle accident.
However, the examiner did not discuss whether carpal tunnel syndrome was caused or aggravated by the service-connected cervical spine disability that was sustained in the 1970 motor vehicle accident given a July 2004 VA treatment record that documented cervical disabilities and ordered avoidance of forceful and repetitive activities with his upper extremities; as well as a November 2004 VA treatment record that documented cervical pain with numbness of the upper extremity. Further, the examiner did not consider the Veteran's competent reports of a wrist injury in the 1970 accident. The examiner also did not discuss other relevant service treatment records, such as the October 1970 record which noted left arm trauma, and whether this is the cause of his current bilateral carpel tunnel syndrome. Additionally, the examiner relied on the length of time between active service and a diagnosis, but did not address earlier reports of carpal tunnel pain, such as an August 1997 VA treatment record that shows complaint of right hand carpal tunnel pain and the issuance of a right wrist brace. As such, the Board finds that an addendum opinion is necessary to properly address the nature and etiology of the Veteran's bilateral carpal tunnel syndrome. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision").
Eye Disorder
The Veteran asserts that he sustained an eye injury during a motor vehicle accident in 1970, and a mark is still present next to his left eye.
The Veteran's service treatment records convey that he sustained facial wounds during a motor vehicle accident. A June 2009 eye consultation notes that the Veteran presented with a history of floaters. The assessment was uncomplicated posterior vitreous detachment, stable ametropia, and pingueculas.
The Veteran has not been afforded a VA ophthalmological evaluation which addresses the relationship, if any, between the Veteran's in-service motor vehicle accident and his multiple eye disabilities. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).
Accordingly, the case is REMANDED for the following action:
1. Refer the Veteran's claim file to the VA examiner who conducted the July 2016 VA examination for an addendum medical opinion, if available. If the examiner is unavailable, the opinion should be requested from another appropriately qualified health care professional. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the addendum opinion, and the addendum opinion must reflect that the claims folder was reviewed.
The examiner should address the following:
1) Whether the Veteran's bilateral carpal tunnel syndrome was at least as likely as not (at least a 50 percent probability) incurred in or caused by his service. The examiner should discuss the October 1970 notation of left arm trauma, the August 1997 diagnosis of right carpal tunnel syndrome, and the Veteran's lay statements regarding the injury and symptoms he experienced in service.
2) If it is not shown to be due to any incident in service, an opinion should be rendered as to whether the Veteran's bilateral carpal tunnel syndrome is caused or aggravated by the service-connected cervical condition.
The examiner must provide a complete rationale for any opinion set forth. In addressing this matter the examiner should address the pertinent evidence in the service treatment records, post service medical records and examinations, as well as the lay evidence provided by the Veteran.
2. Schedule the Veteran for a VA ophthalmological examination in order to assist in determining the nature and etiology of his eye disabilities. All indicated tests and studies should be accomplished and the findings then reported in detail.
The examiner should advance an opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that any identified eye disorder had its onset during active service; is related to the Veteran's in-service motor vehicle accident; or otherwise originated during active service.
All relevant medical records must be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions should be provided.
3. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board is otherwise in order.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).
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Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs